STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-03-272 -?/(- .;' .- I
DONALD GAUVREAU, Plaintiff
JUDGMENTAND DECISION (TITLE TO LAND AFFECTED)
DONALD L. GARBRECHT PATRICK G. GAUVREAU and LAW Ll BRARY KATHLEEN R. GAUVREAU, OCT 1 6 2006 Defendants
PARTIES - The plaintiff Donald Gauvreau, formerly of Shapleigh, Maine, and now residing in Florida, was represented by attorney Edward J. Titcomb of Sanford, Maine.
The defendants Patrick G. Gauvreau and Kathleen R. Gauvreau of Shapleigh, Maine,
were represented by attorney Jens-Peter W. Bergen of Kennebunk, Maine.
The subsequent purchasers of Lot 55 in the Mousam Grove Extension, which was
owned by Donald Gauvreau at the start of this suit, are Michael Boyle and Cynthia
Boyle of Reading, Massachusetts, who were represented by attorney Joseph V.
Lenkowski of Sanford, Maine. DOCKET NUMBER - The docket number is CV-03-272. NOTICE - All parties have received notice of the proceedings in accordance with the
applicable provisions of the Maine Rules of Civil Procedure. THE REAL ESTATE - The plaintiff Donald Gauvreau was the owner of Lots 53, 54 and 55 on 31" Street on or near Lower Mousam Lake in Shapleigh, Maine. See the plan, "Mousam Grove Extension Shapleigh, Maine owned by Chester D. Swan" dated July 1938 and filed at the York County Registry of Deeds in Plan Book 12, Page 105 and the
Plan Showing a Boundary Survey for Patrick and Kathleen Gauvreau dated October 22,
2001 by Corner Post Land Surveying, Inc. of Springvale, Maine filed at Plan Book 282,
Page 34. Also see a deed from Willard V. Boardman to Donald Gauvreau of July 2, 1964
at Book 1673, Page 299 conveying Lot 53 and a deed from Wilfred A. Hartford and
Leona B. Hartford to Donald Gauvreau of August 15, 1967 at Book 1780, Page 211
conveying Lots 54 and 55.
Lot 55 was conveyed by Donald Gauvreau to Michael Boyle and Cynthia Boyle
by deed recorded at Book 14138, Page 509. The Boyles were made parties to this action
and participated through counsel.
Lots 53 and 54 were conveyed to Karen Joy and Sandra Joy by deed recorded at
Book 14158, Page 122. They were not made parties and did not participate at trial. The
Joys were listed by counsel as residing in Revere, Massachusetts.
The defendants Patrick G. Gauvreau and Kathleen R. Gauvreau own or share
ownershp in Lots 50, 51 and 52 whch are on the inland side of 31" Street. Lots 50 and
51 were conveyed to them by Robert Waldron in a deed of September 13,1997 recorded
at Book 8434, Page 54. Lot 52 is owned by Patrick Gauvreau and h s mother Clara
Gauvreau pursuant to a deed from Clara Gauvreau of May 15, 1990 recorded at Book
5398, Page 88.
All of the lots are part of the Mousam Grove Extension which is shown in the
July 1938 plan. As such they all have rights in "all the streets and ways shown on said
plan", Book 8434, Page 54, whch has also been described as "Together with and subject
to all existing rights of way in common with the owners of the other lots shown on said
Plan and subject to the right of all said lot owners to make any customary use of said
roads and ways." Book 5398, Page 88. A third description, found at Book 1673, Page 299, is "together with the right to utilize the streets and ways shown on said plan being
enjoyed in common with the owners of the other lots thereon."
The July 1938 plan shows four rights of way to the lake. The one that matters in
this case is located between Lots 54 and 55 and is about 18 feet in width going from 31"'
Street to the lake.
THE PLEADINGS
The complaint was initially brought in November of 2003 by Donald Gauvreau
against his brother Patrick Gauvreau and his sister-in-law. It contained five counts
including declaratory judgment, quiet title, real action, trespass and injunctive relief
claims respectively. After Donald Gauvreau sold his lots he dismissed his complaint in
its entirety.
A five counts counterclaim was filed by Patrick Gauvreau and Kathleen
Gauvreau against Donald Gauvreau. It included claims for a declaratory judgment, real
action, interference with easement, injunctive relief and damages. After Donald
Gauvreau sold his lots the counterclaim took three directions. That part that sought
declaratory or prospective relief regarding Lot 55 was transformed into a claim against
the new owners Michael Boyle and Cynthia Boyle. That part that sought damages
against Donald Gauvreau for actions taken by him before he sold the lots remained as a
claim against him. That part that sought declaratory or prospective relief against the
new owners of Lot 54, Sandra and Karen Joy, will be treated as being voluntarily
dismissed without prejudice.
THE DISPUTE
All parties agree that there is a right of way from 31" Street to Lower Mousarn
Lake between Lots 54 and 55 and that Patrick Gauvreau and Kathleen Gauvreau have
the right to use that easement to get to and from the lake. The parties agree that the Corner Post survey of October 22, 2001 accurately locates and describes the deeded
easement.
The Gauvreau family has owned land on 31" Street for over 50 years and have
had a dock on Lot 55 right at the corner of that lot and the north-west lakeside corner of
the easement. The dock was installed before Donald Gauvreau acquired title to Lot 55
with the permission of a former owner and has essentially remained in the same
location since sometime in the early sixties.
Because of the nature of the lake bottom, the nature of the shore, the topography
of the land and the existence of tree growth over the years, the actual use of the land
shifted beyond the strict boundaries of the deeded right of way such that the westerly
portion of Lot 54, which abuts the right of way, was used as an easier means of getting
to the lake, the northerly portion of the right of way near the lake was utilized and a
small triangle of land, from Lot 55, with a base of about 5.5 feet on the lake, was used
for the placement of the dock.
The essential issues in the case were three. The first is whether Patrick and
Kathleen Gauvreau have acquired a prescriptive easement over a small portion of Lot
55 which would allow them to keep their dock in the historic location used by
Gauvreaus since the early sixties. The second is whether Donald Gauvreau has
interfered with Patrick and Kathleen Gauvreau's use of either the deeded easement or
any expanded prescriptive easements. The last, which will not be decided because the
new owners Sandra and Karen Joy were never served, is whether Patrick and Kathleen
Gauvreau have acquired prescriptive easement rights to a portion of Lot 54.
The dispute before me centers on the dock, whether a prescriptive easement has
been acquired and whether rights, deeded or prescriptive, have been interfered with.
The two brothers have unfortunately had an, at best, very strained relationshp for decades. Ths issue of the use of 5 feet of frontage and a seasonal dock is a
manifestation of a larger problem beyond my ability to resolve.
All witnesses agree that the dock was installed in the early sixties with the
permission of a prior owner and that it initially was used by the Gauvreau family and
even some other individuals. The parties also agree that Donald never granted Patrick
the right to use the dock and more importantly the small portion of Lot 55.
While there is a dispute about the remaining parts of the hstory of the dock, I
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-03-272 -?/(- .;' .- I
DONALD GAUVREAU, Plaintiff
JUDGMENTAND DECISION (TITLE TO LAND AFFECTED)
DONALD L. GARBRECHT PATRICK G. GAUVREAU and LAW Ll BRARY KATHLEEN R. GAUVREAU, OCT 1 6 2006 Defendants
PARTIES - The plaintiff Donald Gauvreau, formerly of Shapleigh, Maine, and now residing in Florida, was represented by attorney Edward J. Titcomb of Sanford, Maine.
The defendants Patrick G. Gauvreau and Kathleen R. Gauvreau of Shapleigh, Maine,
were represented by attorney Jens-Peter W. Bergen of Kennebunk, Maine.
The subsequent purchasers of Lot 55 in the Mousam Grove Extension, which was
owned by Donald Gauvreau at the start of this suit, are Michael Boyle and Cynthia
Boyle of Reading, Massachusetts, who were represented by attorney Joseph V.
Lenkowski of Sanford, Maine. DOCKET NUMBER - The docket number is CV-03-272. NOTICE - All parties have received notice of the proceedings in accordance with the
applicable provisions of the Maine Rules of Civil Procedure. THE REAL ESTATE - The plaintiff Donald Gauvreau was the owner of Lots 53, 54 and 55 on 31" Street on or near Lower Mousam Lake in Shapleigh, Maine. See the plan, "Mousam Grove Extension Shapleigh, Maine owned by Chester D. Swan" dated July 1938 and filed at the York County Registry of Deeds in Plan Book 12, Page 105 and the
Plan Showing a Boundary Survey for Patrick and Kathleen Gauvreau dated October 22,
2001 by Corner Post Land Surveying, Inc. of Springvale, Maine filed at Plan Book 282,
Page 34. Also see a deed from Willard V. Boardman to Donald Gauvreau of July 2, 1964
at Book 1673, Page 299 conveying Lot 53 and a deed from Wilfred A. Hartford and
Leona B. Hartford to Donald Gauvreau of August 15, 1967 at Book 1780, Page 211
conveying Lots 54 and 55.
Lot 55 was conveyed by Donald Gauvreau to Michael Boyle and Cynthia Boyle
by deed recorded at Book 14138, Page 509. The Boyles were made parties to this action
and participated through counsel.
Lots 53 and 54 were conveyed to Karen Joy and Sandra Joy by deed recorded at
Book 14158, Page 122. They were not made parties and did not participate at trial. The
Joys were listed by counsel as residing in Revere, Massachusetts.
The defendants Patrick G. Gauvreau and Kathleen R. Gauvreau own or share
ownershp in Lots 50, 51 and 52 whch are on the inland side of 31" Street. Lots 50 and
51 were conveyed to them by Robert Waldron in a deed of September 13,1997 recorded
at Book 8434, Page 54. Lot 52 is owned by Patrick Gauvreau and h s mother Clara
Gauvreau pursuant to a deed from Clara Gauvreau of May 15, 1990 recorded at Book
5398, Page 88.
All of the lots are part of the Mousam Grove Extension which is shown in the
July 1938 plan. As such they all have rights in "all the streets and ways shown on said
plan", Book 8434, Page 54, whch has also been described as "Together with and subject
to all existing rights of way in common with the owners of the other lots shown on said
Plan and subject to the right of all said lot owners to make any customary use of said
roads and ways." Book 5398, Page 88. A third description, found at Book 1673, Page 299, is "together with the right to utilize the streets and ways shown on said plan being
enjoyed in common with the owners of the other lots thereon."
The July 1938 plan shows four rights of way to the lake. The one that matters in
this case is located between Lots 54 and 55 and is about 18 feet in width going from 31"'
Street to the lake.
THE PLEADINGS
The complaint was initially brought in November of 2003 by Donald Gauvreau
against his brother Patrick Gauvreau and his sister-in-law. It contained five counts
including declaratory judgment, quiet title, real action, trespass and injunctive relief
claims respectively. After Donald Gauvreau sold his lots he dismissed his complaint in
its entirety.
A five counts counterclaim was filed by Patrick Gauvreau and Kathleen
Gauvreau against Donald Gauvreau. It included claims for a declaratory judgment, real
action, interference with easement, injunctive relief and damages. After Donald
Gauvreau sold his lots the counterclaim took three directions. That part that sought
declaratory or prospective relief regarding Lot 55 was transformed into a claim against
the new owners Michael Boyle and Cynthia Boyle. That part that sought damages
against Donald Gauvreau for actions taken by him before he sold the lots remained as a
claim against him. That part that sought declaratory or prospective relief against the
new owners of Lot 54, Sandra and Karen Joy, will be treated as being voluntarily
dismissed without prejudice.
THE DISPUTE
All parties agree that there is a right of way from 31" Street to Lower Mousarn
Lake between Lots 54 and 55 and that Patrick Gauvreau and Kathleen Gauvreau have
the right to use that easement to get to and from the lake. The parties agree that the Corner Post survey of October 22, 2001 accurately locates and describes the deeded
easement.
The Gauvreau family has owned land on 31" Street for over 50 years and have
had a dock on Lot 55 right at the corner of that lot and the north-west lakeside corner of
the easement. The dock was installed before Donald Gauvreau acquired title to Lot 55
with the permission of a former owner and has essentially remained in the same
location since sometime in the early sixties.
Because of the nature of the lake bottom, the nature of the shore, the topography
of the land and the existence of tree growth over the years, the actual use of the land
shifted beyond the strict boundaries of the deeded right of way such that the westerly
portion of Lot 54, which abuts the right of way, was used as an easier means of getting
to the lake, the northerly portion of the right of way near the lake was utilized and a
small triangle of land, from Lot 55, with a base of about 5.5 feet on the lake, was used
for the placement of the dock.
The essential issues in the case were three. The first is whether Patrick and
Kathleen Gauvreau have acquired a prescriptive easement over a small portion of Lot
55 which would allow them to keep their dock in the historic location used by
Gauvreaus since the early sixties. The second is whether Donald Gauvreau has
interfered with Patrick and Kathleen Gauvreau's use of either the deeded easement or
any expanded prescriptive easements. The last, which will not be decided because the
new owners Sandra and Karen Joy were never served, is whether Patrick and Kathleen
Gauvreau have acquired prescriptive easement rights to a portion of Lot 54.
The dispute before me centers on the dock, whether a prescriptive easement has
been acquired and whether rights, deeded or prescriptive, have been interfered with.
The two brothers have unfortunately had an, at best, very strained relationshp for decades. Ths issue of the use of 5 feet of frontage and a seasonal dock is a
manifestation of a larger problem beyond my ability to resolve.
All witnesses agree that the dock was installed in the early sixties with the
permission of a prior owner and that it initially was used by the Gauvreau family and
even some other individuals. The parties also agree that Donald never granted Patrick
the right to use the dock and more importantly the small portion of Lot 55.
While there is a dispute about the remaining parts of the hstory of the dock, I
found Donald Gauvreau's testimony to be more persuasive. I find that Donald
Gauvreau permitted the seasonal installation and removal of the dock, its placement on
part of his land and its use through 1981 when their father died because the dock was
viewed as belonging to their parents. From 1981 to 1990 when Patrick Gauvreau
acquired an interest in Lot 52 from and with h s mother Clara, Donald Gauvreau
permitted the same uses because it was h s mother's dock even though she at most
rarely used it. However by 1990 his relationship with h s brother worsened, the dock
was treated as Patrick's and it and his presence were not welcome or even tolerated.
The party claiming a prescriptive easement must establish by a preponderance of
the evidence, "continuous use for at least twenty years under a claim of right adverse to
the owner, with his knowledge and acquiescence, or by a use so open, notorious, visible
and uninterrupted that knowledge and acquiescence will be presumed." See Dartnell v.
Bidwell, 115 Me 227, 230, 98 A. 743, 744 (1916), lost v. Resta, 536 A.2d 1113, 1114 (Me.
1988)and Stickney v. City of Saco, 2001 ME 69, ¶16, 770 A.2d 592,601.
Whle there is a dispute as to whether acquiescence existed for the last 20 years,
the use has not been adverse for 20 years. Donald Gauvreau through 1990 permitted
the presence of and use of the dock. At most about 13 of the required 20 years have
been proven under all of the requirements. The next question is whether Donald Gauvreau has interfered with the use of the
easement by his brother. As the deeded easement has not been expanded through the
creation of a prescriptive easement, the focus is solely in the deeded area. I do not find
that Donald Gauvreau has interfered with the use of the actual easement.
The entries are:
It is declared that a prescriptive easement near Lower Mousam Lake at the edge of Lot 55 of the plan of Mousam Grove Extension has not been established.
Judgment for Donald Gauvreau, Michael Boyle and Cynthia Boyle on the counterclaim.
Michael and Cynthia Boyle shall be responsible for recording the attested copy of the judgment and for paying the appropriate recording fees.
Any portion of the counterclaim related to Sandra Joy and Karen Joy regarding Lot 54 is dismissed without prejudice.
Dated: October 6,2006
Justice, Superior Court
The appeal period has expired without action or final judgment has entered after remand following appeal.
Dated: Clerk PLAINTIFF: PARTIES-IN-INTEREST Edward J. Titcomb, Esq. Joseph Lenkowski, Esq. TITCOMB MARASS FLAHERTY KNIGHT SCACCIA LENKOWSKI & ARANSON PO BOX 31 1 P O BOX 929 SANFORD ME 04073-311 SANFORD ME 04073
DEFENDANT : Jens-Peter W. Bergen, Esq. LAW OFFICE OF JENS-PETER W. BERGEN 7 9 PORTLAND ROAD KENNEBUNK ME 04043